[Federal Register Volume 86, Number 38 (Monday, March 1, 2021)]
[Proposed Rules]
[Pages 11916-11918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03983]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R05-OAR-2020-0518; FRL-10020-54-Region 5]


Air Plan Approval; Wisconsin; Large Municipal Waste Combustors 
Negative Declaration Withdrawal for Designated Facilities and 
Pollutants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve Wisconsin's request for withdrawal of the previously approved 
Large Municipal Waste Combustors (LMWC) Negative Declaration. The 
Wisconsin Department of Natural Resources (WDNR) submitted its LMWC 
Negative Declaration withdrawal on September 25, 2020, certifying that 
the State of Wisconsin has only one LMWC unit currently operating and 
requesting that the Federal plan continue to apply to the single source 
in the state.

DATES: Comments must be received on or before March 31, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2020-0518, at http://www.regulations.gov or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Margaret Sieffert, Environmental 
Engineer, Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard (AT-18J), Chicago, Illinois 60604, (312) 353-1151, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

I. Background

    Section 111(d) of the Clean Air Act (Act) requires that EPA develop 
regulations providing that states must submit to EPA plans establishing 
standards of performance for certain existing sources of pollutants. A 
standard of performance would apply to the existing source associated 
with pollutants that are noncriteria pollutants (i.e., pollutants for 
which there is no national ambient air quality standard) and are not on 
a list published under section 108 of the Act or emitted from a source 
category regulated under section 112 of the Act. Section 129 of the 
Act, and 40 CFR part 60, subpart B, apply the section 111(d) 
requirements to existing solid waste combustors, including LMWCs, and 
provide that EPA should include, as part of the performance standards, 
emissions guidelines (EGs) that include the plan elements required by 
section 129.
    The regulation at 40 CFR part 60, subpart B, contains general 
provisions applicable to the adoption and submittal of state plans for 
subject facilities under sections 111(d) and 129 (111(d)/129 plan) and 
negative declarations if no such facilities exist in the state. 40 CFR 
part 62, subpart A, provides the procedural framework for the 
submission of the plans and negative

[[Page 11917]]

declarations. If, at a later date, an existing LMWC is found in a state 
that previously submitted a negative declaration, the Federal plan 
implementing the LMWC EGs would automatically apply to that unit.
    EPA promulgated new source performance standards and EGs for LMWCs 
on December 19, 1995 (60 FR 65387), and amended them most recently on 
May 10, 2006 (71 FR 27324). However, on March 20, 2007, EPA issued a 
notice of reconsideration for three sections of the final rule (72 FR 
13016). The standards and EGs are codified at 40 CFR part 60, subparts 
Cb and Eb, respectively.
    A LMWC unit, as defined in 40 CFR 60.32b, means any municipal waste 
combustor unit with a combustion capacity greater than 250 tons per day 
of municipal solid waste. The designated facilities to which the 
original EG's applied were existing LMWC units for which construction 
was commenced on or before September 20, 1994.
    States were required to submit negative declarations or state plans 
for existing LMWCs, pursuant to sections 111(d) and 129 of the Act and 
40 CFR part 60, subpart B. WDNR submitted a negative declaration under 
LMWC on September 26, 1997, certifying that it had no existing LMWCs. 
On November 12, 1998, EPA finalized the Federal plan under 40 CFR part 
62, subpart FFF (65 FR 33461). EPA approved WDNR's negative declaration 
under 40 CFR 62.12360 on May 24, 2000 (65 FR 33461).
    On September 25, 2020, WDNR submitted its LMWC negative declaration 
withdrawal, in which it certifies that there is one LMWC unit currently 
operating in Wisconsin. The only LMWC unit is at Xcel French Island, 
located in La Crosse, WI. Because there is only one source, WDNR is 
requesting that the previously approved negative declaration be 
withdrawn and that the Federal plan continue to apply to the source.
    Section 111(d)/129 requires states to submit state plans when LMWC 
units exist in its boundaries, and requires EPA to develop a Federal 
plan to cover facilities when states do not develop state plans. EPA 
understands that the extensive time and resources that would be 
required by WDNR to adopt a rule and submit a state plan are 
disproportionate to the single affected source in Wisconsin. EPA's 
Federal plan implementing the EG's would continue to apply to the 
source in Wisconsin (as well as to any existing affected sources if 
found at a later date), upon approval of the withdrawal of the negative 
declaration. Wisconsin would implement and enforce the Federal plan 
through its Title V permitting process. This is described in a February 
19, 2002 WDNR and EPA Region 5 Memorandum of Agreement. This action 
should not be construed as an approval of a state plan or delegation of 
the Federal plan. Wisconsin's section 111(d)/129 obligations are 
separate from Wisconsin's obligations under title V of the Act. 
Wisconsin understands and accepts this limitation.

II. Proposed EPA Action

    EPA is proposing to approve Wisconsin's request for withdrawal of a 
previously approved Negative Declaration and to amend 40 CFR part 62 to 
reflect WDNR's withdrawal. WDNR submitted its LMWC Negative Declaration 
withdrawal on September 25, 2020, certifying that there is only one 
LMWC unit, as defined under 40 CFR 60.31b, currently operating in the 
State of Wisconsin and requested that the Federal plan apply to the 
single source in the State. EPA understands that the extensive work 
that would be required by WDNR to prepare an approved state plan would 
be disproportionate to the single affected source in Wisconsin, and is 
proposing to approve the withdrawal and have the Federal plan apply to 
the known affected source.

III. Statutory and Executive Order Reviews

A. General Requirements

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and 
therefore is not subject to review by the Office of Management and 
Budget under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 
2011). For this reason, this action is also not subject to Executive 
Order 13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
action merely approves state law as meeting Federal requirements and 
merely notifies the public of EPA's approval for a withdrawal of a 
previously approved LMWC Negative Declaration. This action imposes no 
requirements beyond those imposed by the state. Accordingly, the 
Administrator certifies that this rule will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule 
approves pre-existing requirements under state law and does not impose 
any additional enforceable duty beyond that required by state law, it 
does not contain any unfunded mandate or significantly or uniquely 
affect small governments, as described in the Unfunded Mandates Reform 
Act of 1995 (Pub. L. 104-4). This rule is not approved to apply on any 
Indian reservation land or in any other area where EPA or an Indian 
tribe has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000). This action also does not have Federalism implications because 
it does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely approves a withdrawal, and does not alter 
the relationship or the distribution of power and responsibilities 
established in the Act. This rule also is not subject to Executive 
Order 13045 (62 FR 19885, April 23, 1997), because it approves a 
withdrawal.

[[Page 11918]]

    In reviewing section 111(d)/129 plan submissions, EPA's role is to 
approve state choices, provided that they meet the criteria of the Act. 
With regard to withdrawals for designated facilities received by EPA 
from states, EPA's role is to notify the public of the approval of the 
state's withdrawal and revise 40 CFR part 62 accordingly. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a section 111(d)/129 withdrawal for failure to use VCS. It 
would thus be inconsistent with applicable law for EPA, when it reviews 
a section 111(d)/129 withdrawal, to use VCS in place of a section 
111(d)/129 withdrawal submission that otherwise satisfies the 
provisions of the Act. Thus, the requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) do not apply. This rule does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 62

    Environmental protection, Air pollution control, Administrative 
practice and procedure, Intergovernmental relations, Reporting and 
recordkeeping requirements, Large Municipal Waste Combustors.

    Dated: February 22, 2021.
Cheryl Newton,
Acting Regional Administrator, Region 5.
[FR Doc. 2021-03983 Filed 2-26-21; 8:45 am]
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